Mar-a-Lago Update

Tomorrow, we’ll focus on the 14th Amendment argument in front of the Supreme Court. But before we get there, I want to take a moment to discuss what’s going on in the Mar-a-Lago case. Judge Aileen Cannon continues to make rulings that are disturbing. Perhaps we’d view any one of them, on their own, as a judicial aberration. But the pattern of ruling upon ruling that is out of the legal mainstream and results in delay well past the point where this case should have been ready for trial is something that shouldn’t be ignored. Judges should not put their fingers on the scales of justice either for or against a defendant or any other party. Here, it’s impossible to avoid the conclusion that the scales are being tipped.

We are, after much delay, getting to the part of the pre-trial proceedings where the Judge must make rulings about the provision of classified information in discovery to the defendants and its use at trial. By now, you’re probably familiar with the idea that there’s a statute called the Classified Information Procedures Act (CIPA) that we’ve been discussing since this case was indicted, which governs those decisions and lets prosecutors take an appeal in advance of trial if they believe the district judge gets it wrong.

We’re not quite there yet because the CIPA Section 4 hearing, the event most likely to trigger an appeal if the government can’t live with the rulings it gets from the Judge, won’t take place until next Monday and Tuesday. The hearing was originally scheduled for later in the week, but the former president is going to be tied up in court in Manhattan, where he’s being prosecuted by the DA, so Judge Cannon rescheduled.

But on Tuesday, Judge Cannon entered an order in the case that is worth paying attention to. Trump and his Florida co-defendants filed a consolidated motion on January 16, 2024, asking the court to order the government to turn over more discovery to them than it had provided. We talked about the pending motions in this week’s The Week Ahead edition of Civil Discourse, if you want a refresher. The defendants’ motion was filed with lots of redactions because it repeatedly referenced classified material that couldn’t be made public without specific permission from the court. They simultaneously asked the court for permission to file mostly unredacted versions of the motions.

The Special Counsel filed a response, opposing making information public if it revealed the identity or any personal identifying information of any potential witness for the government, or any transcripts or other documentation of statements or testimony they may have given. The Special Counsel justified this because of the need to protect witnesses’ safety and protect them from intimidation. The Special Counsel also pointed to “certain additional discrete sensitive information” that should remain out of the public’s view. It’s plain that Trump wants to intimidate potential witnesses and suggest that the classified material he and his co-defendants are accused of mishandling and withholding from the government isn’t of any particular significance.

The Press Coalition, comprised of major media organizations, also asked the court to unseal the defendants’ motion in an unclassified form, arguing they are public records and the Special Counsel carries a heavy burden to keep them out of the public view. Judge Cannon agreed, and I think correctly so, suggesting in her order that the government has to justify any redaction of material from the public record is “necessitated by a compelling governmental interest and is narrowly tailored to serve that interest.”

Most Judges would give serious consideration to protecting this type of information, at least at this stage of the proceedings. Judge Cannon decided to protect some, but not all of it. She held that “Following an independent review of the Motion and the full record, the Court determines, with limited exceptions as detailed below, that the Special Counsel has not set forth a sufficient factual or legal basis warranting deviation from the strong presumption in favor of public access to the records at issue.” She seemed to find fault with Jack Smith’s concern for his witnesses, despite a record that is replete with Trump’s cavalier treatment of people he views as enemies. Cannon wrote, “the Special Counsel’s sparse and undifferentiated Response fails to provide the Court with the necessary factual basis to justify sealing.” Cannon also rejected Smith’s concern that revealing witness identities at this point could impact the testimony of other witnesses or even impact the pool of potential jurors, making it more difficult to seat a jury when the time comes. She concluded that the identities of potential witnesses could be publicly disclosed.

That left four categories of information Smith objected to revealing:

• Personal identifying information for potential government witnesses, such as dates of birth, email addresses, and telephone numbers. Cannon ordered the defendants to review their submissions and redact any of this information before making their pleadings public.

• References to signals intelligence sub-compartments. (The National Security Agency describes signals intelligence as intelligence derived from electronic signals and systems used by foreign targets, such as communications systems, radars, and weapons systems that provide a vital window for our nation into foreign adversaries' capabilities, actions, and intentions.) Here, too, Judge Cannon determined that the government’s concerns merited protecting the information from public view.

• References to an FBI code name of a separate investigation. The Judge declined to protect this information, again ruling that the government came up short on justifying it.

• “Uncharged conduct as to one or more individuals”—we don’t know who they are. Again, the Judge said the government failed to justify protecting the information.

The ruling is a mixed bag, and after reviewing her order, although reasonable people can (and I do) disagree with her decision to leave witness identities and confidential FBI information exposed to public view, this isn’t likely the kind of decision, standing alone, that prosecutors would seek to appeal. Cannon granted DOJ's request to redact the national security information—the most important information in the motion. The real problem with her ruling is that in ordering the disclosure of other information, she held the government to an unrealistically high standard for protecting information—and witnesses. Smith’s best option may be asking her to reconsider, providing still more evidence to support the contention, for instance, that permitting Trump to disclose the identity of potential witnesses against him puts them at great personal risk given past history. Smith did a fine job of this in his pleadings, and the Judge’s dismissive tone towards the government suggests that there is little they can do to persuade her.

The question is how this tone plays out when the classified information issues surface next week. Trump will also seek additional delay in the case, asking Cannon to postpone the deadline for some pre-trial motions until she resolves dispositive motions he has due on February 22. Trump will try to revisit both presidential immunity and Presidential Records Act claims that border on being frivolous at this point, and using them to further delay this case would be a travesty. 

Many of you have asked whether Smith can move to recuse Cannon on this basis. Whether he has the appetite to do that is something I can’t answer, although I hope he will if her CIPA rulings require the government to disclose any classified information the government objects to, even in discovery. This is a case about Trump’s possession/retention of material, and the substance of it is not particularly relevant to his defense. The unclassified summaries authorized by CIPA should more than suffice where outright deletion isn’t warranted. The time for Smith to decide whether to actively seek Cannon’s recusal, or at least hint to the Circuit that it’s merited, will be after the Section 4 hearing rulings are issued.

When Judge Cannon was first assigned this case, we discussed the standards used in the 11th Circuit for determining whether a judge should be recused based on their prior conduct in a case. The argument is not one of personal bias, or even that she should be recused because Trump appointed her. But in rare, extraordinary cases where a judge has made multiple rulings that were without a valid basis in the record, the 11th Circuit has ordered recusal, finding that “the original judge would have difficulty putting his previous views and findings aside.”

Whether they would apply that rule to Cannon remains to be seen. Forced recusals are rare. But at this late date, even if the 11th Circuit were to move quickly, as it has in the past, and force Cannon to step aside, it would take a new judge some time to get up to speed. There are no quick fixes for the damage Judge Cannon has done.

We’re in this together,

Joyce